C-307/98

OPINION OF MR RUIZ-JARABO — CASE C-307/98

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 28 October 1999 *

1. By this action the Commission is seeking ming pools'. For the purposes of the from the Court of Justice a declaration that Directive 'bathing water' means all running the Kingdom of Belgium has failed to fulfil or still fresh waters or parts thereof and sea its obligations under Article 4 of Council water, in which bathing is explicitly author- Directive 76/160/EEC of 8 December 1975 ised by the competent authorities of each concerning the quality of bathing water 1 Member State or is not prohibited and is (hereinafter 'the Directive'), and the third traditionally practised by a large number of paragraph of Article 189 of the EC Treaty bathers. According to the same provision, (now Article 249 EC). 'bathing area' means any place where bathing water is found, and 'bathing sea- son' means the period during which a large number of bathers can be expected, in the light of local custom, and any local rules which may exist concerning bathing and weather conditions.

1. Directive 76/160

2. The first recital in the preamble to the 4. Article 3 of the Directive imposes on the Directive states that its aim is to protect the Member States the obligation to set, for all environment and public health by reducing the bathing areas or for each individual the pollution of bathing water and protect- bathing area, the values applicable to ing such water against further deteriora- bathing water for the physical, chemical tion. and microbiological parameters given in the Annex to the Directive, which may not be less stringent than those given in the Annex.

if samples of that water, taken at the same sampling point and at the intervals speci- 7. Article 8 provides the following deroga- fied in the Annex, show that it conforms to tions from the Directive: the parametric values for the quality of the water concerned, in the case of:

'(a) in the case of certain parameters marked (0) in the Annex, because of exceptional weather or geographical — 9 5 % of the samples for parameters conditions; corresponding to those specified in column I of the Annex,

(b) when bathing water undergoes natural enrichment in certain substances caus- ing a deviation from the values pre- scribed in the Annex. — 9 0 % of the samples in all other cases with the exception of the "total coli- form" and "faecal coliform" para- meters, where the percentage may be 80%,

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9. After studying the report on the quality of bathing water in Belgium for the years 1983 to 1986, the Commission sent the 12. On 4 January 1990 the Belgian Gov- Belgian authorities an initial letter dated ernment replied to the letter of formal 8 October 1987 pointing out several infrin- notice; it denied that the Directive had been gements of the Directive, in particular the implemented incorrectly and also pointed deviation from the limit values, the exclu- out t h a t various measures h a d been sion of certain bathing areas and the adopted to improve the quality of bathing inadequate frequency of sampling opera- water in the country. tions. On 11 February 1988 the Belgian a u t h o r i t i e s , t h r o u g h their P e r m a n e n t Representative at the European Commu- nities, replied with information about the various matters raised by the Commission. 13. In a letter to the Belgian Government dated 14 November 1995 the Commission

2 — Originally Article 13 of the Directive imposed the obliga- tion to submit a report to the Commission on bathing water 3 — The grounds of complaint were as follows: 'at regular intervals'. However, the article was amended by (a) the Directive had not been correctly transposed into Council Directive 91/692/EEC of 23 December 1991 stan- Belgian law; dardising and rationalising reports on the implementation of (b) an inadequate number of freshwater bathing areas certain Directives relating to the environment (OJ 1991 were monitored especially in the Walloon Region, and L 377, p. 48), which made submission of the report an (c) in the water which was monitored, the limit values annual obligation. fixed in the Directive were exceeded.

14. On 27 December 1996 the Commis- sion addressed a reasoned opinion to 16. The Commission contends that Bel- Belgium pursuant to Article 169 of the EC gium has failed to fulfil its obligations Treaty (now Article 226 EC) stating that it under the Directive (a) by reducing its had failed to fulfil its obligations under the scope of application, (b) by not adopting Directive. Firstly, the Commission pointed the measures necessary to ensure that the out that many freshwater bathing areas quality of the bathing water conforms to were not within the parameters set by the the limit values fixed by the Directive, and Directive. Secondly, it considered that the (c) by not achieving the results required by information submitted about the water the provision. I shall examine each of these purification programmes for the freshwater grounds of complaints below. bathing areas, both for Flanders and for the Walloon Region, were inadequate. Thirdly, it rejected the argument that, during the summer, the water in the Walloon Region was not of sufficient depth for bathing. Finally, the Commission stated that, except in an isolated case mentioned in the reports on the quality of bathing water, the com- (a) Belgiian has reduced the scope of appli- petent authorities had not made use of the cation of the Directive possibility to prohibit bathing in the water which did not conform to the parameters fixed by the Directive.

17. The first ground of complaint refers to the bathing areas in the Walloon Region. The Commission maintains that the Belgian authorities have reduced the scope of 15. After receiving the reply to the letter of application of the Directive by excluding formal notice on 12 February 1997 for the from its annual reports many freshwater Brussels Region, on 6 March 1997 for bathing areas which had previously been Flanders and on 1 July 1997 for the included in the reports (hereinafter 'the

With regard to the disputed areas, the 20. As far as the first question is concerned, Belgian authorities point out that, for some in their reply to the reasoned opinion the time, the quality of the country's bathing Belgian authorities explained that monitor- water was monitored and the results sent to ing had been carried out in those areas the Commission between 1992 and 1996. because the health inspectors (prior to the They point out, however, that in their fédéralisation of Belgium in 1980 and report for 1991, they told the Commission 1988), the decentralised administrative that bacteriological monitoring had been bodies or the municipal councils had clas- carried out not only in the bathing areas sified them as possible bathing areas. covered by the Directive but also in 28 According to the Belgian authorities, many areas in the Walloon Region which did not municipal councils probably conferred the have bathing infrastructures and where classification of bathing area without con- there were very few or no bathers. The sidering the quality of the water or the Belgian authorities also said that subse- actual number of bathers, in order to quent monitoring confirmed that there was promote the local economy. very little or no bathing in those areas

4 — Five of them were classified as bathing areas by Decree of the Walloon Regional Government on 25 October 1990 21. In my opinion, the Belgian authorities (Reniport Beach in Lasne, Lake Robertville in Waimes, Lake Butgenbach, the Rabais Valley and Lake Claire Fontaine in cannot claim that the disputed areas are not Chapelle-lez-Herlaimont), and the other five have been recommended to receive this official classification (River bathing areas for the purposes of the Semois in Herbeumont, the pool at the Saint-Léger Sports Directive when, for years, they have been Centre, the pool at the Libramont Sports Complex, Lake Cherapont and Lake Ry jaune). monitoring their waters in the manner

25. It is then necessary to determine whe- ther the Belgian authorities were entitled to 22. In its action, the Commission draws exclude these areas from the scope of attention to the fact that, in a guide to application of the Directive, when they camping sites published in 1998 by the realised that they were not used by a large Walloon Region, bathing water is indicated number of bathers. in at least 16 of the disputed areas. The Belgian authorities answer that — as is pointed out in the guide — responsibility for that information lies exclusively with the owners of the camping sites, not with the Walloon Region. They maintain that 26. In this regard, I think it is appropriate such details are mentioned in the guide only to recall the judgment of 28 February because the owners of the camping sites are 1991, 5in which the Court had to rule on interested in making their sites more attrac- the question whether the Member States tive, which does not mean that bathing is were authorised to reduce the extent of possible in those areas or that it is practised special protection areas for the conserva- by a large number of bathers. tion of wild birds. 6After emphasising that the Directive docs not expressly provide for the reduction of the extent of a protected area, the Court stated: 'Although the Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as 23. In my view, the reply given by the special protection areas pursuant to Arti- Belgian authorities is wholly unsatisfactory. The aim of the Directive requires the national authorities to intervene in cases 5 — Case C-57/89 Commission v Germany [1991] KCR I-883. in which tourists are attracted to a specific 6 — The case related to the implementation or Council Directive 79/409/EEC of 2 April 1979, concerning the conservation area because they are told that it is possible of wild birds (OJ 1979 L 103, p. 1).

cle 4(1) of the Directive, they do not have within the definition in Article 1, and the same discretion under Article 4(4) of whether or not the Member State explicitly the Directive in modifying or reducing the designates them as such is therefore irrele- extent of the areas, since they have them- vant. selves acknowledged in their declarations that those areas contain the most suitable environments for the species listed in Annex I to the Directive. If that were not so, the Member States could unilaterally escape from the obligations imposed on them by Article 4(4) of the Directive with regard to special protection areas. 7 28. In Case C-92/96, 9 relating to the directive concerning the quality of bathing water, the Spanish Government maintained in its defence that many bathing areas had been abandoned by users as a result of a change in social habits, as bathers preferred to use municipal or private swimming- pools, and that they were therefore no 27. Nevertheless, I consider that there is a longer bathing areas for the purposes of the fundamental difference between the Direc- Directive. tive on the conservation of wild birds and the Directive concerning the quality of bathing water. In the former, the Member States have to define its territorial scope of application by formally designating specific areas as special protection areas.The Direc- tive does not apply to a specific area unless it is so designated. In the Opinion he delivered in that case, Advocate General Lenz pointed out that a reduction in the number of bathers is often due specifically to a reduction in the quality of the water. In such a case, he said, if this were allowed to lead to a situation in which a Member State no longer had to ensure On the other hand,, as Advocate General that the water conformed to the prescribed Lenz pointed out, 8the directive concerning limit values, the Directive would lose its the quality of bathing water 'does not state meaning and aim. However, he added that that the identification of bathing water 'it is [...] quite possible for changes [...] to might be capable of establishing the applic- occur in relation to bathing water. For ability of the Directive'. That is to say, the example, if bathing water ceases to be used Directive applies to all the areas which fall by bathers for certain reasons, which do not include pollution, a Member State should have the right to stop treating such 7 — Ibidem, paragraph 20. 8 — Opinion delivered in the case in which judgment was given on 14 July 1993, C-56/90 Commission v United Kingdom [1993] ECR 1-4109, point 34. 9 — Commission v Spain [1998] ECR I-505.

33. With regard to the shallowness of the 30. I share the view of Advocate General water, the Belgian authorities maintain that Lenz. Once the Directive is applicable to an the fact that point 11 of the Annex to the area as the consequence not of an express Directive establishes as an imperative value declaration by the Member States but of that the water must be transparent to a the fulfilment of the criteria laid down in depth of at least one metre gives reason to Article 1, which are that bathing is expli­ believe that only those bathing areas in citly authorised or that bathing is not which the water is more than one metre prohibited and is traditionally practised deep fall within the scope of application of by a large number of bathers, a change in the Directive. In my view, there is no basis the objective circumstances in an area may for this contention. It is obvious that what justify ceasing to implement the Directive, the Directive requires in each bathing area on two conditions: that the Member State is that, where the water is deep, it is shows that the objective circumstances transparent to a depth of at least on metre have changed and that the reason for that and that, where the water is shallower than change is not a reduction in the quality of one metre, it should all be transparent, that the water. it too say, it should be possible to see the bottom. Furthermore, as the Commission quite rightly points out, it is precisely water 10 — Opinion delivered in the case which was the subject of the judgment in Conmussit» v SĮUIII cited in f o o t n o t e 9, which is shallower than one metre which, point 40. for obvious reasons, attracts specific sectors

I must say at the outset that the Directive First and foremost I should like to stress does not lay down as a requirement for its that when the Belgian authorities point out, applicability that bathing should be possi- in their reply to the reasoned opinion, that ble on a certain number of days. there are no bathing infrastructures in most of those areas, they implicitly acknowledge that there are such infrastructures in some areas. In accordance with the case-law of the Court of Justice, those areas must, in principle, be considered bathing areas for the purposes of the Directive, because the I would remind the Court at this point that existence of such infrastructures constitutes Article 1 of the Directive defines the term evidence that the bathing area is frequented 'bathing season' as 'the period during by a large number of bathers whose health which a large number of bathers can be must be protected. 1 1 Apart from that, I expected, in the light of local custom, and believe, as the Commission points out, that any local rules which may exist concerning the lack of infrastructures does not exclude bathing and weather conditions'. It may be a bathing area or prevent it being consid- deduced from this definition that Member ered as such if it is frequented by bathers. States may take weather conditions into account in order to establish the timetable of the bathing season, as indeed they do, but not in order to decide that the Directive 11 — Judgment in Commission v United Kingdom, cited in footnote 8, paragraph 34. does not apply to a bathing area.

It is true that Article 8 of the Directive contained in the proposal for the Direc- provides that, in the case of exceptional tive, 15 which were not included in the final weather or geographical conditions, it may text, to show that the disputed areas fall be acceptable for bathing water not to outside its scope of application. 16 conform to specific physical and chemical parameters. 12 However, Article 8 also lays down the requirement that the Member State is forthwith to notify the Commission thereof, stating its reasons and the periods

And different way from the ten recognised finally, as the Commission points out, if bathing areas in the Walloon Region. The that minimum number of bathers were second is that other countries in the Eur- necessary, the Directive would probably opean Union have, or endure, a climate not apply to any bathing area in Belgium. similar to the one in Belgium and yet have a large number of bathing areas. 14 15 — COM(74) 191 final of 3 February 1975. 16 — These elements are: '— The Directive concerns only authorised or tolerated

water. The Directive therefore prescribes for sea water — which is the preferred bathing medium — less stringent conditions for those areas where the low prevailing water 12 — To be precise, pH, colour and transparency. temperature (less than 20 °C] Innus the time of bathing compared with other regions where bathing may continue 1 3 — J u d g m e n t in Commission v Sjhiin, cited in footnote 9. throughout the day. paragraph 3 1 . — Prolonged immersion of the whole body is the principal 14 — For example, in the figures for 1997, and counting only activity that determines the required physical and chemical fresh water bathing areas (excluding, therefore, sea water characteristics of bathing water.' bathing areas), Denmark has 112, Ireland 9, the Nether- 17 —Judgmentin Commission v United Kingdom, cited in lands 500 and the Grand Duchy of Luxembourg 20. footnote S, paragraph 3-1.

39. For these reasons I believe that the Belgian authorities have not adequately justified their decision to exclude the dis- puted areas in the Walloon Region from the 42. Under Article 189 of the EC Treaty, the scope of application of the Directive and Directive imposes on the Member State to that the Commission's first ground of which it is addressed the obligation to complaint must be upheld. achieve the required result but, neverthe- less, leaves it to the national authorities to choose the ways and means of doing so. The obligation imposed on the Member States by the Directive concerning the quality of bathing water consists of ensur- ing that the water complies with the limit (b) Belgium bas not adopted the measures values fixed in the Directive. In order to necessary to ensure that the quality of the achieve that objective, the Member States bathing water conforms to the limit values must adopt measures which may vary fixed by the Directive according to the circumstances, bathing areas and source of the pollution. These are initiatives which are not specifically regulated and in which the Member States 40. The Commission's second ground of must be allowed to exercise a certain complaint comprises two pleas which need amount of discretion, because of the wide to be considered separately. variety of disturbances which may affect bathing water, which is a different situation from the one which appertains in other sectors of Community environmental law. Therefore, any opinion which is formed 41. In the first place, the Commission about the measures adopted by each Mem- contends that the programmes of invest- ber State will, in my view, depend on ment in water purification, both in Flanders whether or not those measures have made and the Walloon Region, are inadequate. it possible to achieve the results required by To be precise, the Commission maintains the Directive, which is the subject of the that the Belgian authorities have merely third ground of complaint that I shall mentioned the setting up of water-treat- consider later. ment infrastructures in general, without giving specific details about the impact of those infrastructures on the improvement in the quality of the bathing water. So far as concerns Flanders, it points out that the 43. Secondly, the Commission contends water purification programme does not that the measures contained in Belgian even cover all the bathing areas. As to the law for prohibiting bathing in those areas

45. In short, the Commission alleges that Belgian national law does not impose on the competent authorities the obligation to prohibit bathing in those areas in which deviations from the limit values established in the Directive have been recorded.

48. In my view, this analysis is confirmed by the proposal for a directive concerning the quality of bathing water which has been 46. In reply to a question put by the Court, submitted by the Commission and which, if the Commission acknowledges that the approved by the Council, will replace the

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directive currently in force. 18 The 15th 2. Unless the prohibition is permanent the recital in the preamble to the proposal for a water shall still be considered to be bathing directive states: water for the purposes of this Directive.

3. Member States which permanently pro- 'Whereas bathing should not necessarily be hibit bathing at individual bathing areas prohibited on the ground that water is not shall forthwith inform the Commission in compliance with the limit values laid thereof, indicating the reasons why the down in this Directive; whereas, however, bathing water cannot be brought into in order to protect the health of bathers, it conformity with this Directive's require- is necessary for Member States to prohibit ments.' bathing in any bathing area every time the pollution represents a danger to public health; whereas the said limit values should be taken into account'.

5 1 . In its third ground of complaint, the C o m m i s s i o n claims t h a t the results required by the Directive have not been achieved. It cites, in particular, Article 5 which states that bathing water is to be deemed to conform to the relevant para- 53. In the first place, they maintain that meters if samples of that water, taken at the whenever the sampling operations reveal same sampling point and at the intervals deviations from the limit values, bathing in specified in the Annex, show that it con- that area is prohibited after administrative forms to the parametric values for the consultation.The area is therefore exclu- quality of the water concerned in the ded, temporarily or permanently, from the percentage of cases specified in paragraph scope of application of the Directive, so it is 1 of the Article. 19 therefore not possible to say that this provision has not been observed.

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bathing is actually prohibited in those 58. In any event, this argument of the circumstances. Belgian authorities cannot be accepted either. As the Court has stated, 'the Direc- tive requires the Member States to take all necessary measures to ensure that bathing waters conform to the limit values set therein, within a period which is longer than that laid down for transposition of the Directive, in order to enable the Member 55. In any event, this claim by the Belgian States to satisfy such a requirement [...]. authorities is irrelevant in resolving this The Directive therefore requires the Mem- matter. In fact, it is clear from the reports ber States to ensure that certain results are submitted to the Commission that the achieved and, apart from the derogations Belgian authorities did not issue notifica- provided for, does not allow them to rely tion of any bathing prohibition for the on particular circumstances to justify a 1995 season, and of only one in the failure to fulfil that obligation [...]'. 23 So, Walloon Region for the 1996 season. 'even if [...] limit values were exceeded only once in only one season, [...], that too constitutes an infringement of the Direc- tive'. 24 Although the Court has not dis- missed the idea that the absolute impossi- bility of fulfilling the obligations arising from the Directive could justify a failure to 56. In the second place, the Belgian autho- comply with it, 2 5 in this case the Belgian rities contend that it is unrealistic to expect authorities have not established such to achieve 100% conformity, in view of the impossibility. health risks which escape monitoring: ille- gal dumping, the use of semiliquid fertili- sers and the pollution caused by the bathers themselves.

62. In the light of the foregoing considerations, I propose that the Court of Justice should uphold the application and:

(1) declare that, by not adopting the necessary measures to ensure that the quality of the bathing water conforms to the limit values fixed under Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water, within a period of ten years from notification of the said Directive, the Kingdom of Belgium has failed to fulfil its obligations under Article 4 of the Directive and Article 189(3) of the EC Treaty;

(2) order the Kingdom of Belgium to pay the costs.

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